[1993/oagheade.htm]

OAG 93-76

November 2, 1993

Linda P. Sullivan

Corporate Counsel

Lexington Fayette Urban County Government

200 East Main Street

Lexington, Kentucky 40507

Dear Ms. Sullivan:

You have asked whether the Kentucky Living Will Act and the Surrogate Health Care Act of Kentucky apply to emergency medical services providers. We conclude that under normal circumstances neither act applies to EMS providers.

The Living Will Act

The Living Will Act (KRS 311.622 to .644) authorizes a “qualified patient” to execute a declaration that requests the withholding of life-prolonging treatment. The declaration authorizes an “attending physician” to withhold certain treatment in compliance with the declaration.

“Qualified patient” is defined as an adult patient of sound mind who has executed a declaration and has “[b]een diagnosed by the attending physician and one (1) other physician as having a terminal condition, with said condition noted by both in the patient's medical record . . . .”

“Attending physician” is defined as “the physician who has primary responsibility for the treatment and care of the patient . . . .”

Thus, before the declaration may be given effect, the patient must be examined by a physician who has primary responsibility for the patient's treatment and care; the patient must be examined by a second physician; and the two physicians must concur that the patient's condition is terminal and make a notation to that effect in the patient's medical record. We believe that it would be extremely unusual for these circumstances to occur in the context of emergency treatment provided by an ambulance service. It is unlikely that a physician will be present; it is more unlikely that two physicians will be present; and still more unlikely that they will have the patient's medical record with them.

We have considered the possibility that EMS personnel may be in radio or telephone contact with a physician. We cannot say as a matter of law that such a physician would be considered to have “primary responsibility for the treatment and care of the patient.” The scope of the physician's responsibility would depend on the particular facts of the situation, although we find it unlikely that the legislature intended responsibility for the care and treatment of a patient to devolve upon a physician who perhaps has never seen the patient.

We therefore conclude that under all but the most extraordinary circumstances the Kentucky Living Will Act does not apply to EMS providers.

The Surrogate Health Care Act of Kentucky

The Surrogate Health Care Act of Kentucky (KRS 311.970 to .986) allows an adult to make a written designation of a surrogate who is empowered to make health care decisions for the declarant when the declarant lacks decisional capacity. The act does not apply if “the grantor's attending physician has determined in good faith that the grantor has decisional capacity.” If that prerequisite is met, then the surrogate may make a decision after “consider[ing] the recommendation of the attending physician.” The definition of “attending physician” is the same as the definition given in the Kentucky Living Will Act.

The requisite conditions for invoking the Surrogate Health Care Act are not as stringent as the the Living Will Act in that only one physician is required. Nevertheless, we find it unlikely that the necessary conditions would exist in an emergency situation. First, there must be an attending physician, and as we stated in the preceding section this probably requires that a physician be physically present to examine the patient. Second, the surrogate must be located and consulted. Third, although the act does not require it, a physician who is not personally acquainted with the patient would be well advised to inspect the written declaration before allowing a surrogate to act; therefore in most situations someone would have to locate the document. Fourth, the physician must determine whether the patient has decisional capacity and make a recommendation to the surrogate.

The confluence of these conditions in an emergency situation is sufficiently unlikely for us conclude that as a practical matter the Surrogate Health Care Act of Kentucky does not apply to EMS providers.

Our opinion should not be construed as placing any particular duty on EMS personnel or deviating from established legal principles regarding the right to refuse treatment. We simply conclude that the exigencies of an emergency care situation will rarely, if ever, provide the environment necessary to invoke either the Kentucky Living Will Act or the Surrogate Health Care Act of Kentucky.

If this analysis indicates that our assumptions regarding the context of EMS situations does not reflect actual experience, we will be happy to reconsider our conclusions.

Sincerely,

Chris Gorman

Attorney General

Ross T. Carter

Assistant Attorney General